National Consumer Disputes Redressal
H.U.D.A. vs Mrs. Harinder Walia on 14 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL NO. 39 OF 2004 (Against the Order dated 04/08/2003 in Complaint No. 77/1999 of the State Commission Haryana) 1. H.U.D.A. THROUGH CHIEF ADMINISTRATOR SECTOR - 06 PANCHKULA N/A ...........Appellant(s) Versus 1. MRS. HARINDER WALIA W/O. SH. SANJEEV WALIA HOUSE NO. 739 SECTOR 11 - B CHANDIGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. M. SHREESHA, MEMBER For the Appellant : For the Appellants : Ms. Anubha Agrawal, Advocate. For the Respondent : For the Respondent : Mr. Pankaj Changothia, Advocate.
Dated : 14 Sep 2015 ORDER D.K. JAIN, J., PRESIDENT
This First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), has been preferred by the Haryana Urban Development Authority, (for short, "HUDA"), questioning the correctness and legality of order, dated 04.08.2003 passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh (for short "the State Commission") in Complainant Case No. 77 of 1999. By the impugned order, the State Commission has disposed of the Complaint, with a direction to HUDA to withdraw the order of resumption passed by it in respect of the booth allotted to the Complainant, on her depositing certain amounts indicated in the allotment letter.
2. Since the case has a chequered history, it would be necessary to notice the facts, giving rise to the complaint, in extenso. These are as follows:-
2.1 In an open auction held by HUDA on 25.02.1981, the Complainant purchased a Booth Site, bearing No. 38, Sector-6, Panchkula, admeasuring 22.68 Sq. Mtrs., for a total bid amount of ₹1,39,000/-. As per the terms of the allotment letter, issued by HUDA on 16.04.1981, the Complainant was required to pay 25% of the bid amount, after adjusting ₹15,000/-, deposited at the time of the auction, within 30 days of the date of issue of letter of allotment, which was duly paid on 15.05.1981. The remaining 75% of the bid amount was to be paid in 10 half-yearly instalments, as per the schedule mentioned in the allotment letter along with interest @ 10% p.a. on the balance amount, which was to accrue from the date of offer of possession by HUDA. Admittedly, except for the initial deposit of 25% of the price of the booth site on 15.05.1981, the Complainant did not deposit any further amount, despite numerous notices, commencing 01.07.1982, calling upon her to pay the balance sale consideration, failing which levy of penalty under Section 17(1) of the Haryana Urban Development Authority Act, 1977 (for short "the HUDA Act") was threatened. On 13.11.1989, HUDA issued notice under Section 17(3) of the HUDA Act, calling upon the Complainant to show cause as to why an order of resumption of the site be not made on account of failure on her part to pay an amount of ₹2,68,000/-, together with penalty and interest etc. Surprisingly, simultaneously vide letter, dated 17.11.1989, HUDA offered possession of the allotted booth site to her. The possession was finally delivered to the Complainant on 06.08.1990. Having received the possession, with the sanction of HUDA, the Complainant carried out construction of the booth, and applied for issuance of completion certificate, which according to the Complainant, was issued by the authorised Architect on 14.09.1991.
2.3 In the meanwhile, HUDA went on issuing notices to the Complainant u/s 17(2) and 17(4) of the HUDA Act, periodically. It seems that vide her letters dated 24.04.1992 and 30.05.1992, the Complainant asked for the details of the amounts being demanded from her. In response, vide its letter dated 02.07.1992, the Estate Officer, HUDA informed the Complainant that although requisite information had already been furnished to her, yet again, on reconciliation of her account, a sum of ₹4,68,203/- was due from her, instead of a sum of ₹5,58,747/- as communicated earlier. She was asked to remit the said amount at the earliest, failing which the booth would be resumed. There was no response to the notice from the side of the Complainant. Consequently, vide order dated 25.09.1992, the Estate Officer ordered resumption of the subject booth and forfeiture of ₹34,750/-, being 25% of the bid amount, initially deposited by the Complainant.
2.4 Being aggrieved by the said order of resumption, the Complainant, unsuccessfully challenged it by preferring appeal before the Chief Administrator, HUDA. The Appeal was dismissed vide order dated 21.01.1997. The matter seems to have rested there.
2.5 However, in exercise of powers conferred on it under Section 18 (1) (b) of the HUDA Act, vide order, dated 01.03.1999, the Estate Officer, HUDA directed the Complainant to vacate the subject booth within 30 days of receipt of the said order, failing which her eviction by use of force was threatened. On 07.04.1999, yet another eviction order was passed by the Estate Officer, HUDA, Panchkula, directing the Complainant to vacate the subject premises within 7 days from service of the notice.
2.6 The order of eviction was challenged by the Complainant on 19.04.1999 by filing an Appeal under Section 20(1) of the HUDA Act. However, since the threat of eviction was looming large, alleging gross deficiency in service and unfair trade practice on the part of HUDA in ordering her eviction from the subject booth, on 18.10.1999, the Complainant filed complaint under the Act before the State Commission, inter-alia, praying for quashing of order of resumption dated 25.09.1992 and the Eviction order dated 07.04.1999 with a direction to HUDA to accept the balance instalments along with interest @ 10% p.a. and also pay a compensation of ₹3,00,000/- for escalation in cost of construction; loss of rental income etc. 2.7 In the meanwhile, the Appeal preferred by the Complainant against the eviction order came to be dismissed by the Administrator, HUDA, vide order dated 06.12.2000.
2.8 Reverting back to the complaint, it was contested by HUDA on diverse grounds. By way of preliminary objections, it was pleaded that the complaint was barred by limitation, as the cause of action, if any, arose on 25.09.1992, when the order of resumption was made but the complaint was filed on 18.10.1999 and further the Consumer Forum lacked jurisdiction to examine the legality of the orders of resumption and eviction, which could be questioned by the Complainant by preferring a Revision Petition under the HUDA Act or by way of Writ Petition.
3. By the impugned order, without adverting to any of the objections raised by HUDA regarding the maintainability of the complaint, taking cognizance of the offer made by the Complainant that she was willing to deposit all the outstanding dues as per the terms of letter of allotment with interest on the said amount from the date of possession, by a short order, the State Commission has disposed of the complaint in the following terms:-
"At the out-set of hearing, Mr. Sanjeev Walia, counsel appearing for the complainant contends that the complainant is willing to deposit all the out-standing dues as per terms of the letter of allotment and shall also pay interest from the date of possession of booth was offered to her and the complainant will fore-go the cost of escalation and mental agony etc. Mrs. Suraksha Sharda, counsel for the opposite parties has pleaded that the complainant has to pay all the out-standing dues along with interest as per HUDA policy."
Having considered the submissions of the counsel for the parties, the complaint is disposed of with the direction that the complainant shall deposit all the outstanding dues along with interest as per terms of the letter of allotment in the office of Estate Officer, HUDA, Panchkula. However, it is made clear that the complainant has to pay the interest from the date of delivery of possession of the booth site to him. Thereafter on the application/representation to be made by the complainant to the Administrator HUDA, Panchkula, resumption order is to be withdrawn. However, other reliefs sought by the complainant are declined. The complaint stands disposed of accordingly."
4. Being dissatisfied with the order, both the parties preferred Appeals before this Commission, being Appeal Nos. 39/2004 and 195/2004. When HUDA's Appeal was listed for hearing on 27.05.2008, upon mentioning, Complainant's Appeal was also taken on Board. However, as Counsel for HUDA was not present, its Appeal (No. 39/2004) was dismissed in default. On dismissal of the said Appeal, Counsel for the Complainant did not press her Appeal. Accordingly, Appeal No. 195/2004 was also dismissed with liberty to the Complainant to get her Appeal revived in case HUDA's Appeal was restored.
5. Subsequently, HUDA filed application, being MA No. 1143/2010, for restoration of its Appeal, along with application for condonation of delay (IA No. 1/2010) in filing the said application. Since in its application for restoration of Appeal, HUDA had laid the entire blame for the lapse in remaining unrepresented at the time of hearing on its Counsel, vide order dated 21.07.2011, it was directed to file affidavit explaining as to what action had been taken by it against the Counsel, who had been engaged to represent it. On 16.09.2011, on being informed that a complaint had been lodged with the Bar Council against the lawyer, the Bench adjourned the hearing in the Restoration Application to await the decision of the Bar Council on the said complaint. Liberty was, however, granted to the parties to mention the case for listing. On Complainant's moving an application for early hearing, the restoration Application and the Appeal have now came up for final hearing.
6. At this juncture, it would be apposite to note that because of dismissal of HUDA's Appeal in default, on 27.05.2008, the Complainant made a representation to the Administrator, HUDA seeking compliance of the State Commission's order dated 04.08.2003, on the plea that she had already deposited a sum of ₹2,76,250/- in terms of the direction issued in the said order. The representation was accepted and vide order dated 19.08.2011, the Administrator set aside the order of resumption of the booth observing thus:-
"Comments regarding the submissions made by the applicant were sought from Estate Officer, HUDA, Panchkula and the same have been received vide memo No. 7008 dated 31.5.2011 wherein it has been mentioned that the amount was accepted from the applicant as it was decided by Administrator, HUDA, Panchkula to implement the order subject to decision of Higher Court as the executing court had taken a serious view for non compliance of the orders. Perusal of the record also reveals that the applicant has deposited all the outstanding dues and hence no dues certificate has also been issued in her favour. Moreover, Hon'ble NCDRC, New Delhi vide its order dated 30.03.2011 had also observed that since possession of the plot has been with the allottee for some years, the shop has been constructed and payment has also been fully received by appellant HUDA, hence it would be just and proper if the order of Hon'ble SCDRC, Haryana is implemented in letter and spirit by both the parties."
7. It was pointed out that against the above order, HUDA has preferred Revision Petition under Section 17(8) of the HUDA Act before the Principal Secretary, Government of Haryana, Town and Country Planning Department, which has been adjourned sine die for awaiting the decision in the present Appeal.
8. We have heard Ms. Anubha Agrawal, Learned Counsel for HUDA and Mr. Pankaj Chandgothia, Learned Counsel for the Complainant. On conclusion of hearing, the parties were permitted to file brief synopsis of their submissions. HUDA was also directed to place on record its policy for charging interest in the event of delay in deposit of the instalments as stipulated in the letter of allotment. Synopsis have been filed on behalf of both the parties.
9. Before considering the Appeal on merits, we shall first take up the application filed by HUDA for restoration of the Appeal, which was dismissed in default as far back as on 27.05.2008. In the Application (MA No. 1143 of 2010), it is pleaded that when the Appeal was listed for hearing on 12.04.2005, it could not be taken up due to heavy board of cases. While adjourning, it was directed that next date will be intimated to the parties on its usual turn. The stand of HUDA is that it neither received notice from the Commission nor any intimation from its Counsel about the next date of hearing of the Appeal and as a matter of fact they learnt about its dismissal when a copy of the order was received by it from the Complainant sometime in the month of February, 2010. As noted supra, in furtherance of order dated 21.07.2011, it was stated on behalf of HUDA before the Bench that a complaint had been filed against the Advocate with the Bar Council, but the same was still pending.
10. In view of the said development and bearing in mind the merits of the Appeal, we are of the opinion that HUDA has made out sufficient cause for condonation of delay in filing the application for restoration and also for restoration of the Appeal and it should not be made to suffer because of the lapse of its lawyer. Consequently, the delay in filing the application is condoned; the restoration application is allowed and the Appeal is restored to its original status.
11. Adverting to the merits of the Appeal, Ms. Anubha Agarwal, Learned Counsel appearing for HUDA strenuously urged that the State Commission has exceeded its jurisdiction in issuing the impugned directions as it has failed to consider the plea of HUDA that the complaint was miserably barred by limitation. Relying on the decision of the Hon'ble Supreme Court in State Bank of India Vs. B.S. Agriculture Industries (I) (2009) 5 SCC 121, it was argued by the Learned Counsel that before examining the merits of the complaint, it was incumbent upon the State Commission to deal with question of limitation. It was stressed that if at all there was any cause of action to file the complaint, it arose on 25.09.1992, when the order of resumption of the booth was made by the Estate Officer and, therefore, the complaint filed on 18.10.1999 was absolutely stale. It was then asserted that as per the Scheme of the Act, a Consumer Fora cannot sit in Appeal over the orders passed by a Statutory Authority in exercise of the power vested in it under a specific statute, as was done in the present case. To buttress the argument, in the synopsis filed, reliance is placed on the decision of the Hon'ble Supreme Court in Ashok Kumar & Ors. Vs. Sita Ram (2001) 4 SCC 478, wherein it has been observed that even in exercise of Writ Jurisdiction under Article 226 of the Constitution, a High Court is not expected to interfere with the final order passed by a Statutory Authority, unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. On merits it was urged that the Complainant herself being a chronic defaulter, having enjoyed the booth for over 25 years by paying meagre sum of ₹34,750/-, being 25% of the cost of booth site, it does not lie in her mouth to allege deficiency in service on the part of HUDA in resuming the booth and ordering her eviction.
12. Per contra, Learned Counsel appearing for the Complainant, supporting the impugned directions, submitted that having delayed the delivery of possession of the booth site for almost seven years, there was deficiency in service on the part of HUDA for depriving the Complainant from its use. It was also urged that the impugned directions having already been implemented by HUDA, in the interregnum when the present appeal was not alive, inasmuch as the order of resumption has been set aside by the Administrator, vide order dated, 19.08.2011, this Appeal is rendered infructuous and deserves to be dismissed as such. Lastly, it was pleaded that the eviction at this stage of the Complainant, a widow, who is in possession of the booth for the last 25 years and earning her livelihood, would be travesty of justice.
13. Having given our anxious consideration to the afore-noted background facts, we are of the opinion that the impugned order is unsustainable. It is evident from the afore-extracted penultimate paragraph of the impugned order that the State Commission has disposed of the complaint only on the basis of the concession made by the Complainant herself, without even referring to the preliminary objections raised on behalf of HUDA regarding the maintainability of the complaint. In our view by ignoring the said objections, which go to the very root of the jurisdiction of the State Commission to entertain the complaint, it has committed a serious error in law, vitiating the impugned order.
14. In B.S. Agriculture Industries (supra), elaborately dealing with the purpose and scope of Section 24-A of the Act, the Supreme Court has held that Section 24-A of the Act is peremptory in nature and requires the Consumer Fora to see, before it admits the complaint, that it has been filed within two years from the date of accrual of cause of action. The expression, "shall not admit a complaint'', occurring in Section 24-A of the Act, is a sort of legislative command to the Consumer Fora to examine on its own whether the complaint has been filed within the limitation period prescribed therein. It has been held that if the complaint is barred by time and yet the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality. Of course, if a sufficient cause for delay in filing the complaint is shown, the Consumer Forum, for the reasons to be recorded in writing, may condone the delay in filing the complaint and deal with it on merits thereafter.
15. In so far as the present case is concerned, it is clear to us that if at all any cause of action had accrued in favour of the Complainant to file the complaint, it arose on 25.09.1992, when the order of resumption of the booth was passed by the Estate Officer, HUDA. We do not find any merit in the stand of Learned Counsel for the Complainant that the cause of action arose only on 07.04.1999, when the eviction order was made by the Estate Officer. The foundation for eviction was the order of resumption without which the eviction order could not have been made and not vice-versa. Precisely, for this reason the principal prayer in the complaint was for setting aside/quashing of the order of resumption.
16. We also find merit in the submission of Learned Counsel for HUDA that the orders passed by the Estate Officer, ordering resumption of the booth and the eviction of the Complainant, in exercise of powers conferred on him under Sections 17 and 18 (1)(b) of the HUDA Act, on account of default on the part of the Complainant in making payment of the balance sale consideration, cannot be construed to be a "deficiency", as defined in Section 2 (1)(g) of the Act, when tested on the touchstone of any legal standards.
17. Support to this view is lent by the decision of the Supreme Court in Ashok Kumar's case (supra). In that case, while dealing with the question as to whether the order passed by the Rent Control Tribunal, constituted under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 could be interfered by the High Court in exercise of its jurisdiction under Article 226 of the Constitution, the Hon'ble Court held that unless the order passed by a Statutory Authority, vested with power to act quasi-judicially, suffers from a manifest error the High Court is not expected to interfere with such an order. It was observed that the High Court should bear in mind that it was not acting as yet another Appellate Court in such a matter.
18. In the instant case, the Estate Officer had passed the two orders, subject matter of the complaint, in exercise of power conferred on him under the HUDA Act. The said Act provides statutory remedy against such orders and as a matter of fact the Complainant did avail of the statutory remedy but did not carry the matter further after her appeal was dismissed by the Administrator. Having accepted the Appellate order again made by a Competent Authority, we are unable to hold that there was "deficiency" on the part of the HUDA in making the two orders in question, so as to fall within the ambit of Section 2 (1) (d) of the Act.
19. For all these reasons, we are of the opinion that having failed to consider the aforestated jurisdictional facts in their correct perspective, the State Commission has erred in issuing the impugned directions, merely on the basis of the statement made on behalf of the Complainant, to the effect that she was willing to pay the balance amount due under letter of allotment dated 16.04.1981, which she was otherwise obliged to pay more than two decades ago.
20. Having come to the said conclusion, we wonder if the possession of Complainant in the subject premises could still be regularised as it is stated that she is running a small business from the said premises for the last so many years for her livelihood. Although, as noted above, the order of resumption has already been set aside by the Administrator, but in view of this order, the Revision Petition filed by HUDA against order dated 19.08.2011, and stated to be still pending, is likely to be revived. We are confident that while taking a final decision in the Revision Petition, the Learned Principal Secretary shall take into consideration the peculiar facts of this case, more particularly the fact that the Complainant was put in possession of the booth site as far back as on 6.08.1990, in spite of the fact that at that point of time, she was a defaulter and notices under Section 17 of the HUDA Act had been issued to her. We may also note that during the pendency of the Appeal, HUDA was asked to work out the total amount of interest @ 18% p.a. on the balance 75% of the sale consideration which the Complainant could be asked to pay for regularisation of the booth in her favour. As per the date-wise calculation made by HUDA, which is stated to be as per its policy, as on 30.11.2014, the amount works out to be ₹15,88,923/-. The Learned Principal Secretary may consider directing the Complainant to pay upto date interest on the said basis or any other amount, which may have been charged by HUDA in similar default cases. We leave the matter to the wisdom of the Officer. However, we direct that if the order passed in the Revision Petition is adverse to the Complainant, it shall not be given effect to for a period of 30 days from the date of its receipt by the Complainant, in order to enable her to take recourse to legal remedy against the said order, if so advised.
26. Resultantly, the Appeal is allowed and the impugned order is set aside with the afore-noted observation and direction. In the facts and circumstances of the case, there will be no orders as to costs.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER